FAQ about Marriage for Same-Sex Couples

» Frequently Asked Questions About Marriage for Same-Sex Couples in PA - (printer-friendly pdf version)

Please note that this document provides general information about the legal rights of same-sex couples in Pennsylvania. It is not meant to substitute for individualized advice from an attorney.

For advice on your individual situation, please contact Mazzoni Center by email at legalservices@mazzonicenter.org or by phone at 866-LGBT-LAW (542-8529). If you believe your rights have been violated, contact the ACLU of Pennsylvania at info@aclupa.org or by phone at 877-PHL-ACLU (745-2258) if you live in the eastern half of the state or 877-PGH-ACLU (744-2258) if you live in the western half of the state.

Updated 6/4/14

On May 20, 2014, U.S. District Judge John E. Jones, III, ruled in favor of the ACLU’s clients in Whitewood v. Wolf, striking down Pennsylvania’s Defense of Marriage Act (DOMA), the law that excluded same-sex couples from marriage. His order directs the commonwealth to allow same-sex couples to marry and to recognize valid out-of-state marriages. On May 21, 2014, Governor Tom Corbett announced that he will not appeal Judge Jones’ decision. For more information about the Whitewood case, visit http://www.aclupa.org/marriage.

The Freedom to Marry

Is Judge Jones’ ruling final? Is Pennsylvania really a marriage equality state?

Yes! The commonwealth has announced that it will not appeal Judge Jones’ decision. Judge Jones’ order directing the commonwealth to allow same-sex couples to marry and to recognize valid out-of-state marriages is law. Same-sex couples can marry in Pennsylvania and same-sex couples’ out-of-state marriages should be recognized in every way immediately. This is true even if the government office with which you are dealing does not yet have a form that deals with marriage in a gender-neutral way.

When can my partner and I get married?

You can apply for a marriage license immediately. In Pennsylvania, the first step to getting married is for the couple to show up in person at a Register of Wills/Orphans Court in any county to submit a marriage license application. (In some counties you can begin, but not complete, the application online). Under Pennsylvania law, there is a three-day waiting period after the application is submitted before the Register of Wills can issue a marriage license. The three-day waiting period includes weekends, so couples who apply on a Thursday or Friday will receive a marriage license on Monday. Marriage licenses can be mailed or picked up in person. (Some Register of Wills offices give out marriage licenses on the day of application but mark them as not valid until three days after the filing of the application.)

Is it possible to get a waiver of the three-day waiting period for a marriage license?

You can ask a judge to grant you a waiver if there are exceptional circumstances that make it urgent for you to get married right away. The Registers of Wills who issue marriage licenses cannot waive the waiting period on his or her own; only a court can do this.

If I have a civil union or domestic partnership, can I still marry in Pennsylvania?

Yes. If you and your partner have registered as domestic partners (or Life Partners in Philadelphia) with a city or countyin Pennsylvania, that will not be recognized as a marriage. If you want to be married, you will need to apply for a marriage license. You will need to contact the government office where you registered to find out whether you need to follow up in any way to keep any benefits you received as domestic partners.

If you entered into a civil union or domestic partnershipin another state, you should consult with an attorney to determine whether you need to do anything to adjust your status in that other state. If you have a civil union or domestic partnership with a former partner (including one from a Pennsylvania city or county), you should consult an attorney about how to terminate that legal relationship before you apply for a new marriage license.

I receive public benefits because of my low income (public assistance, SSI, etc.). Will marrying my partner affect this?

Yes. It is very important to determine the effect of marriage on any benefits that you receive as a low-income person before getting married. Just as with opposite-sex couples, once married, both spouses’ incomes are considered in determining an individual’s entitlement to income-based benefits. Getting married can severely impact your eligibility for these benefits.

Marriage Recognition and Divorce

My spouse and I were married in another state. Does Pennsylvania now consider us married?

Yes. Now that Pennsylvania’s Defense of Marriage Act (DOMA) has been overturned, same-sex couples may get married in the state, and those who were previously married in other states are recognized as married in Pennsylvania.

How do I ask Pennsylvania to recognize my out-of-state marriage?

Pennsylvania does not have a process to register or otherwise track out-of-state marriages. Instead, you simply start filling out forms as “married” when you have reason to file them. This applies to both state and local government forms, as well as private companies—like insurance companies—that offer different products or rates depending on whether you are married. You should consult a tax advisor about whether Pennsylvania will allow you to amend past years’ taxes to claim any benefit that might have been available to you as a married couple.

Will my Pennsylvania marriage be recognized by other states?

You will be recognized as married in the other 18 states that recognize the marriages of same-sex couples, a list of states that we expect to continue to grow. In addition, some private businesses or other third parties outside of Pennsylvania may recognize your marriage for their own purposes.

My partner and I just got married in Pennsylvania! Will our marriage be recognized by the federal government?

Yes! Legally married same-sex couples living in Pennsylvania are treated as married for all federal purposes. You will now be considered spouses for the purpose of obtaining access to federal protections for married couples such as unpaid (but job-protected) leave under the Family Medical Leave Act (FMLA) to care for a spouse, Social Security survivors’ benefits, the opportunity to sponsor a foreign-born spouse for citizenship, and veterans’ spousal benefits. However, if you move from Pennsylvania to a state that does not recognize the marriages of same-sex couples, there may be some federal benefits for which you are not eligible. Federal law is changing quickly in this area. You should consult an attorney if you plan to move to a state that does not respect your marriage.

We got married with a marriage license from Montgomery County, PA, in 2013. Does the ACLU’s Whitewood victory mean that Pennsylvania will recognize my marriage now? Or can we just re-marry?

The Whitewood decision did not address the validity of marriage licenses issued before May 20, 2014 and no court has ruled directly on this issue yet. There is separate litigation ongoing in state court to determine the legal status of these marriages. The commonwealth has taken the position that those licenses are invalid, and a court has ruled that the Montgomery County did not have the authority to issue the licenses. If the marriage licenses are invalidated, you should be able to reapply.

If you are already represented by counsel in litigation related to these marriage licenses, you should consult with your attorney as to the best course of action.

For other couples who married pursuant to marriage licenses issued by Montgomery County prior to May 20, 2014, you should definitely consult with an attorney if you have held yourself out as “married” in order to change your legal status or obtain any benefit. Examples include claiming spousal (as opposed to domestic partner) medical benefits at work, or filing taxes as “married,” or obtaining a “married” rate for car or other insurance. The ACLU of Pennsylvania is working to identify volunteer lawyers who can help you with this.

If you have not held yourself out as married in any official way since you got the Montgomery County license and you are not involved in litigation related to your marital status, the safest thing is for you to do is to assume your previous license is invalid and to get married again. You should apply for a marriage license as if you have never been married. It will make no legal difference whether you get married in Pennsylvania or another state.

We were married in another state, but don’t want to be anymore. Can we get a divorce in Pennsylvania?

Yes. To obtain a divorce, it is usually required that at least one of the parties be a resident of the court’s jurisdiction. Before the ACLU’s victory inWhitewood v. Wolf, because Pennsylvania would not acknowledge a same-sex couple’s marriage, even for the purpose of dissolving it, Pennsylvania residents who had married in other states had a very hard time getting divorced anywhere. Now that Pennsylvania recognizes marriage of same-sex couples, Pennsylvania courts will provide access to divorce proceedings to all couples.

Protecting Your Relationship and Family

Now that our marriage is recognized/now that we are married, do we have to re-do our wills, powers of attorney, or medical proxies?

No, you do not have to re-do your wills or powers of attorney or medical proxies just because you are married or now recognized as married.

My spouse and I don’t have powers of attorney or medical proxies. Do we still need them in order to make decisions for each other if one of us is incapacitated?

In Pennsylvania, a legal spouse now enjoys automatic primary medical decision-making responsibility for their incapacitated spouse. However, until there is marriage equality nationwide, having powers of attorney and medical proxies is still a good idea. If you ever travel to a state that does not recognize you as married, you could be vulnerable without these legal documents to protect your relationship.

My spouse and I own a home together. Do we need to update our deed now that our marriage is recognized?

Possibly. You should consult a real estate lawyer. If you married before May 20, 2014, you may need to update the deed to your home to hold title as “tenants by the entirety.” This is a form of ownership that reflects a full and indivisible interest in real estate, only available to married people like you.

Will my spouse be eligible to inherit all of my property when I die?

Yes. As long as you reside in Pennsylvania or another state that respects your marriage, you can rest assured that your spouse will inherit your property if you die without a will in place. Furthermore, property inherited from a spouse is exempt from Pennsylvania’s estate tax. Previously, same-sex couples living in Pennsylvania whose marriages were not recognized were charged 15% in estate tax on everything inherited from their spouse—even joint marital property like joint bank accounts and shared homes. Now that same-sex couples’ marriages are recognized in Pennsylvania, you will receive a spousal exemption from the state’s inheritance tax.

Now that Pennsylvania is a marriage equality state, we don’t need adoption, right?

Wrong! Married same-sex couples will still need to assure legal recognition for both parents through adoption. The adoption process will be slightly different for each family, depending on each person’s biological relationship to the child, but all families should consider this need and consult an attorney to determine the best option for you.

For pregnant lesbian couples who are married at the time of birth, Pennsylvania should automatically recognize you both as your child's parents at birth on your child’s birth certificate. Contact the ACLU of Pennsylvania immediately if you have any problems with this. But you should still go through with an adoption. The legal presumptions about parentage based on marriage could be challenged without an adoption in place. And, until we have marriage equality throughout the country, the non-biological parent’s parental rights might be at risk when you travel. Without a decree or order of adoption, another jurisdiction does not have to recognize your parentage based solely on marriage. If you visit a state that doesn't have marriage equality, then a birth certificate saying you're the parent is not enough.

My partner and/or I want to change our names. How do we do that?

If you are planning to get married, you and your partner can both change your names to whatever you want when you marry. Your new names will not appear on your Pennsylvania marriage license, but if you take your marriage license to PennDOT or the Social Security office, they will let you choose new names and issue you identity documents in your new names. It is important to complete this process promptly after you marry.

If you are already married in another state and changed your name at the time of marriage, PennDOT will now recognize your out-of-state marriage license as evidence of your name change.

If you are already married and did not change your name at the time of marriage, you will need to obtain a court order to change your name. Mazzoni Center has a comprehensive guide on how to change your name and identity documents, posted online at http://mazzonicenter.org/resources.

If you encounter any difficulty in this process, contact the ACLU of Pennsylvania.

Who can help us create wills, powers of attorney, do a step-parent adoption, and change our names?

Mazzoni Center’s Legal Services Department provides direct services to LGBT individuals in these and other areas of law, and can also make referrals to other LGBT-sensitive attorneys in Pennsylvania who can assist you with your unique legal issues. Please visit www.mazzonicenter.org/legalservices or call the Center toll-free at 866-LGBT-LAW (542-8529). No matter whom you see for legal advice, make sure that person has experience representing LGBT couples.

Nondiscrimination

Can I be discriminated against for marrying someone of the same sex?

It depends where you live. Unfortunately, Pennsylvania has no statewide protection against discrimination in housing, employment, and places of public accommodation on the basis of sexual orientation. However, several municipalities in Pennsylvania have adopted some local protections against sexual orientation discrimination. Mazzoni Center has a list of municipalities with some legal protections against discrimination against LGBT people: http://mazzonicenter.org/resources.

Also, the Pennsylvania General Assembly is currently considering legislation to include “sexual orientation” and “gender identity or expression” in the commonwealth’s nondiscrimination law. If enacted, it would prohibit discrimination against LGBT Pennsylvanians in employment, housing, and public accommodation. Contact your state senator and your state representative to ask them to support Senate Bill 300 and House Bill 300. Find your state legislators at this link: http://www.aclupa.org/ yourlegislator.

Will my spouse be able to access my employer-subsidized health insurance or other employment benefits extended to married couples?

Probably. We expect that in most employers who offer health coverage to opposite-sex spouses will offer the same benefits to same-sex spouses. However, because Pennsylvania does not yet have a statewide law that prohibits private employers from discriminating on the basis of sexual orientation, there may be some exceptions to this. But some municipalities have enacted local nondiscrimination laws that prohibit employment discrimination based on sexual orientation. An individual’s right to certain employee benefits will be very fact-specific and you should direct your questions to your Human Resources department or an attorney. If you work for a state or local government agency in Pennsylvania and your employer has discriminated against you because of your sexual orientation, please contact the ACLU of Pennsylvania. The good news is that employees who do receive insurance coverage for their same-sex spouses no longer have to pay income taxes on that benefit.

Can a church refuse to marry my partner and me?

Yes. Although Judge Jones’ ruling inWhitewoodrequires that Pennsylvania allow same-sex couples to marry and recognize the out-of-state marriages of same-sex couples for all government purposes, it does not require any religious organization to perform marriage ceremonies. What marriages a church recognizes for religious purposes is a religious choice protected by the First Amendment.

Can a private business in Pennsylvania such as a florist or a photography studio refuse to provide my same-sex partner and me with services for our wedding?

It depends where in Pennsylvania the business is located. Unfortunately, Pennsylvania has no statewide law prohibiting discrimination on the basis of sexual orientation and marital status by private businesses that are open to the public. However, several municipalities in Pennsylvania have adopted some local protections against sexual orientation discrimination. If the business is subject to a local nondiscrimination law that prohibits sexual orientation discrimination, then the business may not refuse you services, regardless of the religious beliefs of the business owner or employee. Contact the ACLU of Pennsylvania if you have been denied wedding-related services.

I have more questions…

Of course you do! This document provides general information about the legal rights of same-sex couples in Pennsylvania. It is not meant to substitute for individualized advice from an attorney. Please contact Mazzoni Center by email at legalservices@mazzonicenter.org or by phone at 866-LGBT-LAW (542-8529)for more advice on your individual situation. If you believe your rights have been violated, contact the ACLU of Pennsylvania at info@aclupa.org or by phone at 877-PHL-ACLU (745-2258) if you live in the eastern half of the state or 877-PGH-ACLU (744-2258) if you live in the western half of the state.